May 7, 2019

NYC Saxophonist Latest To Sue Fortnite For Ripping Off His 'Likeness'

Apple could be accused of having started all this by suing over the 'look and feel'of the iPhone, though others may remember that Wired co-founder and early member of the digerati, Kevin Kelly, went through a period in the early 2000s when he wrote down and copyrighted any thought he had because he believed his intellectual property might some day be valuable.

Not sure how that worked out...but, needless to say, the tidal wave of people who think their 'signature moves' or ideas have been illegally misappropriated has probably crested - without monetization. JL

Tim Cushing reports in Tech Dirt:

Another semi-celebrity has hopped aboard the Fortnite-suing money train.The Copyright Office has made it clear it will only extend copyright protection to moves showing sufficient creativity. Leo Pellegrino claims the developer used his likeness without permission when designing a saxophone dance in the game. Pellegrino says
his “trademark moves have become inseparable from his persona and his
life story” and that Epic had not asked for permission to use
his likeness or “his signature moves.”All Pellegrino has is an assertion he plays a
saxophone enthusiastically and Fortnite has an "emote" featuring a
different kind of saxophone played enthusiastically by an avatar. Any similarities are probably coincidental.Because there's no shortage of people willing to believe someone else's millions can be theirs with minimal effort, another semi-celebrity has hopped aboard law firm Pierce Bainbridge's Fortnite-suing money train. Destination unknown.
The law firm has helped everyone from former sitcom star Alfonso Ribeiro to a sentient meme known as "Backpack Kid" throw money into a federal court holes over the past several months. Thanks to a recent ruling by the Supreme Court, most of its copyright infringement lawsuits are on hold because the plaintiffs have yet to actually have protection granted for their dance moves by the US Copyright Office.
It's not like this is just a matter of waiting out the Office. The Copyright Office has made it clear it will only extend copyright protection to dance moves showing sufficient creativity. It's not likely to find most of the dance moves being sued over worth protecting as most of them consist of only a "few movements or steps with minor linear or spatial variations." One of the first litigants to jump into the Sue Fortnite pool -- Alfonso Ribeiro -- has already been rejected by the federal government.
Unfortunately, the lawsuits continue, as Nick Statt reports for The Verge.

Fortnite creator Epic Games is facing a lawsuit from New York City-based saxophonist Leo Pellegrino, who claims the developer has used his likeness without permission when designing a saxophone dance in the game. The lawsuit was filed today in federal court for the eastern district of Pennsylvania.The emote, called “Phone It In,” lets players whip out the brass instrument and play a quick tune while dancing. Pellegrino, best known for his Brass House band Too Many Zooz, says his “trademark moves have become inseparable from his persona and his life story” and that Epic had not previously asked for permission to use his likeness or “his signature moves.”

Firm staffers likely had to browse their way past video, which seems to show Fortnite's developers are ripping off someone else entirely.

What makes this lawsuit even more sketchy than the others Pierce Bainbridge has filed is it's not a copyright infringement lawsuit. The lack of registration has halted its other lawsuits and, given the Copyright Office's response to one its many clients, it seems unlikely most of these will be refiled. So, Pellegrino is claiming it's his likeness that has been "misappropriated," which is definitely a stretch when the emotes can be performed by dozens of characters that look and dress nothing like Pellegrino. Oh, and also, even the saxophone is different. Pellegrino plays a baritone sax, and the Fortnite version appears to be an alto sax, so they're not even playing the same instrument.
All Pellegrino really has is an assertion that he's a dude who plays a saxophone enthusiastically and Fortnite has an "emote" featuring a different kind of saxophone being played enthusiastically by the player's avatar. Any similarities are probably coincidental, seeing as there's only so many ways someone can play a saxophone with far more enthusiasm than the instrument deserves.
Despite its 100% failure rate in Fortnite lawsuits, Pierce Bainbridge is still finding plaintiffs willing to ensure its partners keep collecting paychecks. And isn't that the greatest victory of all?

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As a Partner and Co-Founder of Predictiv and PredictivAsia, Jon specializes in management performance and organizational effectiveness for both domestic and international clients. He is an editor and author whose works include Invisible Advantage: How Intangilbles are Driving Business Performance.Learn more...